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For all your legal challenges...
We're here to help
The breakdown of a relationship can be an emotional and stressful experience, not only for the adults involved but also for the children. Issues such as with whom and where the children are to live and how often the children should see the other parent are not always easy to resolve. The purpose of this article to give you information as to how such issues can be resolved in the absence of you and your former partner being able to reach an agreement.
Family law has evolved over the years from a time when the law concentrated more on the adults involved and their rights, to the present where proceedings are completely child-centred with parents’ rights now being secondary to those of their children. As the current law stands the welfare of the children has to be the court’s paramount consideration and in family legislation it is the child’s best interests, not the parents’ rights that are at the heart of the proceedings. It is a child’s right to have a meaningful relationship with both of his/her parents unless there are significant reasons to suggest otherwise.
What is the Child Arrangements Programme?
The Child Arrangements Programme applies where a dispute arises between separated parents and/or families about arrangements concerning the children. The programme is designed to assist families to reach safe and child-focussed arrangements for their child(ren), where possible out of the court setting. The starting point is the presumption, unless the contrary is shown, that the involvement of a parent in the life of the child concerned will further the child’s welfare.
What are the benefits of resolving matters outside of the court arena?
It is well recognised that negotiated agreements between adults generally enhance long-term co-operation, and are better for the child concerned. Therefore, separated parents and families are strongly encouraged to take responsibility for their children and their arrangements and to attempt to resolve their disputes concerning their child(ren) outside of the court system. This may also be quicker and cheaper.
Sometimes it is possible, with the input of solicitors, for the parties to be able to reach an agreement even though they themselves were not able to do so before. For this reason, very often the starting point will be for your solicitor to send correspondence on your behalf.
If you are able to reach an agreement this could be outlined in a parenting plan. Such a plan should cover all practical aspects of the care for the child(ren). It should reflect a shared commitment to the child(ren) and their future, with particular emphasis on parental communication, living arrangements, money, religion, education, health care and emotional wellbeing.
What about mediation?
If it is not possible to reach an agreement either directly or via solicitors’ correspondence then your solicitor may, if appropriate, suggest that you and your former partner engage in mediation. This may also be suggested right at the outset by your solicitor, dependent on your situation, before any correspondence is sent by them to your ex-partner. Mediation is a process in which you and your former partner sit down with a neutral third party, often a lawyer trained mediator, to discuss the issues in the hope of enabling you to reach an agreement.
Following the Children and Families Act 2014 is now a requirement that before making any application to the Court, a person must attend a family mediation information and assessment meeting. There are some exemptions to this for example, urgency, if there has been domestic abuse or a child is at risk.
An agreement reached between you and your ex-partner, whether devised entirely by yourselves or arrived at with the assistance of your solicitor or the assistance of mediation, is far more likely to be successful than arrangements imposed upon your family by the Court.
When will court proceedings be necessary?
If, despite best efforts, it is not possible to reach an agreement, then there will be little option but to involve the Court. In the vast majority of circumstances it will be necessary for the applicant within the proceedings to have first attended a mediation information and assessment meeting and such attendance will need to be confirmed within the Court application forms as explained above. If the parents have previously prepared a Parenting Plan, this should also be attached to the application form.
The Courts paramount concern in determining any such application is the welfare of the children. The Court also takes the view that any delay is likely to be prejudicial to the best interests of the child(ren). The Court presumes that it is in a child’s best interests to spend time with both of his/her parents. It is only possible to rebut this presumption in very exceptional circumstances. In essence the legislation reinforces the importance of a child continuing to have a meaningful relationship with both parents, unless such a relationship would place the child at risk of suffering harm.
Before the first Court hearing takes place Cafcass (The Children and Family Court Advisory and Support Service) will carry out safeguarding enquiries. For all child arrangement orders this will include seeking information from local authorities, carrying out police checks on the parties and assessing any recent offending and any patterns of offending behaviour. Cafcass are also likely to want to speak to each of the parties in advance of the first court hearing. The will then set out all of the information that they have obtained in a safeguarding letter to the court.
The Children and Families Act 2014 replaced Residence and Contact Orders with a single ‘Child Arrangements Order’. A Child Arrangements Order sets out the arrangements relating to (a) with whom a child is to live, spend time or otherwise have contact, and (b) when a child is to live, spend time or otherwise have contact with any other person. The Court will only make such an Order if the parties are incapable of reaching agreement on the issues themselves. In deciding how to exercise these powers, the Court will have regard to the following, known as The Welfare check list:
However, when considering whether to make an order, the court shall not make the order unless it considers that doing so would be better for the child than making no order at all.
The new procedure envisages three hearings but there may, in some cases, be more:
At this hearing the Court will consider whether the applicant has attended a Mediation Information and Assessment Meeting and if not whether proceedings should be adjourned to allow for this to happen. The court will also consider the safeguarding information that has been provided by Cafcass and encourage the parties to be proactive and try to resolve the issues if appropriate. If the matter cannot be resolved at that hearing the Court will provide directions as to how the outstanding issues are to be resolved and consider what the interim arrangements for the children should be.
At this hearing, with the benefit of any additional information that has been obtained, the Court will try to assist the parties to:
Who are Cafcass?
Cafcass stands for the ‘Children and Family Court Advisory and Support Service’. Cafcass is independent of the Courts, social services, education and health authorities and all similar agencies. Cafcass workers (sometimes called ‘Family Court Advisors’ or ‘officers’) are specialist social workers who help the court by making safeguarding checks, helping parties at the first hearing to consider solutions, and if necessary writing reports for the court and/or monitoring arrangements after court.
Often in disputed private law proceedings a CAFCASS officer will be asked to report to the court. CAFCASS will be told the remit of the enquiries to be made which are likely to include a need for the officer to speak to all parties concerned and also others who have information that may assist such as schools and doctors where appropriate. They may also speak to the child and observe the child interacting with both parents and speak to other family members such as new partners. It is the CAFCASS officer who will inform the court as to the child’s wishes and feelings and the judge is likely to place considerable weight upon that report.
What about child maintenance?
It is a common misconception that if the parent who does not live with the child does not pay maintenance they are not entitled to see the child. The two issues are entirely separate. It is the child’s right to see both parents, not the parent’s right to see the child. Other than as possible evidence of a lack of commitment, non-payment of maintenance is irrelevant.
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